Appeal from two judgments of the United States District Court for the District of Connecticut (Jose A. Cabranes, Judge) holding, in the first, that federal defendants had not taken action sufficiently final to be reviewed by the Court and, in the second, that final approval of the I-84/I-86 Connector complied with applicable environmental and administrative law. Affirmed.
Before Cardamone and Winter, Circuit Judges, and Conner, District Judge.*fn*
This is an appeal from Judge Cabranes' decision dismissing as premature plaintiffs' challenge to the adequacy of the Environmental Impact Statements (EIS's) prepared for two proposed sections of Interstate Highway 84 (I-84), and rejecting various challenges to the Federal Highway Administration's (FHWA) and United States Department of Transportation's (DOT) final approval of a connecting route between I-84 and Interstate Highway 86 known as the "I-84/I-86 Connector." 504 F. Supp. 314 (D.Conn.1980); 519 F. Supp. 523 (D.Conn.1981). Familiarity with Judge Cabranes' opinions is assumed.
In 1968, Congress provided for the construction of an additional 1,500 miles of interstate highway and, on December 13 of that year, DOT approved construction of a link between Hartford, Connecticut and Providence, Rhode Island.
On January 1, 1970, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4361 (1976), became law. Portions of the proposed I-84 already under construction were exempt from the NEPA. The Act applied, however, to the yet unconstructed portions and the Connecticut Department of Transportation (CDOT) had to submit EIS's, 42 U.S.C. § 4332, with respect to three portions of the proposed highway. The first, Section I, involves construction of a 12.6 mile segment of I-84 from Bolton to Windham, Connecticut. The second, Section II, is a 17.8 mile segment of I-84 from Route 6 in Windham to Killingly, Connecticut, at the Rhode Island border. Rhode Island authorities were to submit the EIS as to the Rhode Island segment of I-84. The third, the so-called I-84/I-86 Connector, comprises roughly five miles of improvements and new construction in the greater Hartford area to link portions of the two interstate highways and to alleviate local traffic.
In 1972, draft EIS's (DEIS's) were submitted for Sections I and II, and were the subject of hearings in several Connecticut towns. In December, 1975, the final EIS (FEIS) was submitted for Section I to the FHWA regional office and, in January, 1976, a FEIS was submitted for Section II. In 1978, both documents were sent to Washington, D.C., for FHWA approval known as "prior concurrence." See 23 C.F.R. § 771.14(c) (1980).*fn1
In 1976, a DEIS was prepared on the I-84/I-86 Connector. This DEIS included a so-called "Section 4(f) statement," see 23 C.F.R. § 771.19 (1980), required because the proposed Connector would use land set aside as a public park. This DEIS was submitted for comment to public agencies and private organizations and public hearings were held in East Hartford and Manchester, Connecticut. In 1978, a FEIS was prepared, submitted to, and approved by, the FHWA regional office and forwarded to Washington, D.C., for prior concurrence.
In June, 1979, the FHWA deferred action on the three requests for prior concurrence because of differences with the Environmental Protection Agency (EPA). By the fall of 1979, issues concerning air quality in the Connecticut portion of the road had been resolved. Initial plans for Rhode Island construction, however, proposed the use of watershed land of the Scituate Reservoir, the main water supply for the greater Providence area, and the EPA pressed for further study of alternatives.
On October 12, 1979, Acting Assistant Secretary of Transportation Charles Swinburn gave conditional approval to the FEIS's on Sections I and II. Design work was authorized but expressly conditioned on either final approval by the DOT of an EIS for the Rhode Island segment or supplementation of the FEIS's as to the environmental impact of the Connecticut portion of I-84 on Rhode Island. The FEIS on the I-84/I-86 Connector was unconditionally approved. The FHWA Regional Administrator adopted the Agency's recommendations and informed the public, relevant state agencies, and the EPA. 23 C.F.R. § 771.14(d) (1980).
The conditional approval of Sections I and II sparked additional controversy within the federal government. On December 13, 1979, the EPA took its dispute with the FHWA to the Council on Environmental Quality (CEQ).*fn2 The EPA contended that even the limited approval given Sections I and II committed I-84 to a location in Connecticut which was "biased) against the selection of alternative non-watershed corridors in Rhode Island; and ... create(d) a situation of maximum danger to the Scituate Reservoir." The EPA requested that CEQ rescind the FHWA's conditional approval with respect to Sections I and II. No challenge was made to the approval of the FEIS covering the I-84/I-86 Connector.
On April 30, 1980, CEQ Chairman Gus Speth informed Secretary of Transportation Neil Goldschmidt that, in CEQ's view, the conditional approval of design work on Sections I and II violated NEPA. He noted that even conditional approval
... limits and prejudices the choice of alternatives in the new Rhode Island EIS and the possible supplemental Connecticut EIS and ...